Sentencing Guidelines:
A. Chapter Two - Offense Conduct
Chapter Two - Offense Conduct
Sixth Circuit Decisions
A. Chapter Two - Offense Conduct
• 2A1.2 - Second Degree MurderU.S. v. Conatser, 06-5694 (2/4/08)
> Defendant was a jail guard who was convicted of conspiracy to violate the civil rights of inmate, and six substantive charges of violating inmate civil rights, including a count of denying necessary medical treatment that resulted in the inmate’s death. At sentencing, the district judge determined that the applicable guideline was USSG § 2A1.2 (second degree murder). Based upon this determination, the recommended guideline range was life in prison, and the district court imposed life. Defendant appealed and argued that the district court should have applied USSG § 2A1.4 for involuntary manslaughter.
* Holding: Pursuant to 18 USC §§ 1111(a) and 1112(a), a critical difference between murder and manslaughter is that murder requires proof of “malice aforethought.” This mens rea may be inferred where a defendant “grossly deviates from the standard of care to such an extent that a jury could conclude that he must have been aware of a serious risk of death or serious bodily injury.” In the case, the court found that “malice aforethought” was proven on defendant’s part where he (1) beat the inmate twice in the head, (2) directed another guard to “take care of” the inmate, knowing that the guard likely beat the inmate in the head, (3) knew the inmate was unconscious as a result, (4) knew the inmate had brain surgery in the past two years, and (5) failed to get medical treatment for the inmate. The court rejected defendant’s claim that the inmate’s condition may have been due to his intoxication. Accordingly, the court found that application of § 2A1.2, for second degree murder, was appropriate.
• § 2A3.1(b)(2)(A) - Victim Enhancement
U.S. v. DeCarlo, 04-5813 (1/17/06)
> Defendant was convicted of interstate travel with intent to engage in sexual conduct with a minor and at sentencing the district court enhanced defendant’s sentence by four levels, pursuant to U.S.S.G. § 2A3.1(b)(2)(A), because the intended victim was under 12. The “victim” was actually an undercover agent, and defendant objected to the enhancement. The district court overruled defendant’s objection and defendant appealed.
* Holding: The court held that the four-level enhancement for a victim under 12 applies to a defendant even if the “victim” is an undercover agent. Notably, the offense occurred in 2003, and the Sentencing Commission amended the commentary to § 2A3.1 in 2004 to clarify that the enhancement applied where the “victim” was an agent. The court held that, because the amendment was merely a clarification as opposed to a substantive change, the enhancement should apply to defendant. Accordingly, application of the enhancement was appropriate. The case was nonetheless remanded for reconsideration under Booker.
• § 2A3.1 - Criminal Sex Abuse of Minors
U.S. v. Hochschild, 05-3159 (3/31/06)
> Defendant was charged with traveling across state lines to engage in sex with a child under the age of 12. The “child” was an undercover agent, and defendant was arrested upon arrival. The district court sentenced defendant under USSG § 2A3.1 (2002 Edition), and increased defendant’s offense level by 4 because the victim was under 12. Defendant appealed.
* Holding: The court first held that no guideline specifically covered interstate travel to engage in a sex act, but that § 2A3.1 most closely resembled the offense. (In 11/04, § 2G1.3(c)(3) was added which now covers such acts). The court then affirmed prior precedent that a four-level enhancement for a victim under 12 is appropriate, even though there was no actual victim. Finally, the court concluded that applying the four-level enhancement based upon the victim’s age was not double counting, even though the victim’s age was the factor that made § 2A3.1 applicable in the first place. Accordingly, application of the four-level enhancement was proper.
• 2A3.1(b)(2) - Travel for Sex Act
U.S. v. Angwin, 06-4654 (3/25/09)
> Defendant was convicted of traveling across state lines to engage in a sex act with a person under the age of 12. The child was fictitious, and an undercover agent pretending to be the child’s mother set defendant up. At sentencing, the district court applied a four level enhancement under USSG § 2A3.1(b)(2) because the “victim” had not attained the age of 12. Defendant appealed.
* Holding: The court held that the application of the enhancement was proper even though the child victim was fictitious and even though the agent never pretended to be the child, only the mother. Accordingly, defendant’s sentence was affirmed.
• §2A3.2(b)(2)(B) - Sex Acts with Minors
U.S. v. Chriswell, 04-5020 (3/18/05)
> Defendant was convicted of attempting to induce a minor, via the internet, to engage in sexual activity. At sentencing, the district court imposed a two-level enhancement pursuant to U.S.S.G. § 2A3.2(b)(2)(B)(2003) for unduly influencing the victim to engage in prohibited sexual conduct. The “victim” was actually an undercover officer posing as a fourteen year old. Defendant objected upon the grounds that the two-level enhancement was inapplicable because there was no real “victim” to be “unduly influenced.”
* Holding: The Sixth Cicuit held that §2A3.2(b)(2)(B) is inapplicable in a case where the victim is not a real person, but instead an undercover officer. The court emphasized that the focus of the enhancement was the influence on the victim, and thus, could not be logically applied where the victim was an undercover officer. Accordingly, the case was reversed and remanded for resentencing in light of Booker.
• 2A4.2 - Demanding Ransom Money
U.S. v. Brika, 05-4537 (5/23/07)
> Defendant was convicted of using a telephone to extort money in exchange for the release of a kidnaped person. At sentencing, the district court determined that USSG § 2A4.2 applied to the offense, but it utilized a cross-reference provision to the kidnaping guideline at § 2A4.1. Defendant argued on appeal that the cross reference was improper.
* Holding: The court first held that the cross reference to the kidnaping guideline was proper because a preponderance of the evidence supported the finding that defendant was, in fact, responsible for the underlying kidnaping. Second, the court held that the district court’s finding that the cross reference was proper did not amount to a per se rule the cross reference to the kidnaping guideline would apply in every demand-for-ransom conviction. The court found several situations where an individual might not be involved in the hostage taking activities, but could be convicted of demand for ransom and sentenced under § 2A4.2. Thus, the sentence was affirmed.
• § 2B1.1 - Fraud Loss Amount
U.S. v. Sosebee, 03-1923 (8/12/05)
> Defendants ran a company that sold various products to the government at a reduced price. Defendants negotiated a deal with their supplier that, when defendants resold products to the government at the reduced price, defendants could get a “charge back” from the supplier on the purchase price. During the course of business relations, defendants sold products to non-government purchasers, and then fraudulently misrepresented to the supplier that defendants were entitled to the charge backs. Defendants were investigated federally, and negotiated a plea bargain to a misprision of felony charge. At sentencing, the district court calculated the loss amount based upon the fair market value of the goods and the charge back amount to the supplier. Defendants appealed the loss calculation.
* Holding: The court held that the district court had correctly utilized the fair market value to assess loss under U.S.S.G. § 2B1.1. In considering the fair market value of products, a court must determine (1) whether the market value is readily ascertainable, and (2) whether the market value adequately measures either the harm suffered by the victim or the gain to the perpetrator, whichever is greater. The “fair market value” is the price a willing buyer would pay a willing seller at the time and place involved. In the case, the court concluded that the fair market value of the products was the price the supplier charged defendants. The supplier’s loss was thus correctly calculated to be the difference between the fair market value and the discounted price that defendants induced the supplier to charge back. Accordingly, the sentence was affirmed.
• 2B1.1 - Loss Amount
U.S. v. Mickens, 05-3377 (7/3/06)
> Defendant was convicted of credit card fraud. In the presentence report, the probation officer recommended that defendant be held responsible for about $15,000 in actual loss and over $110,000 in intended loss. The intended loss figure was based upon the fact that the government found 32 additional credit cards in defendant’s hotel room, and the probation officer estimated that defendant intended to charge $3,500 per credit card. The district court sentenced defendant accordingly, and defendant appealed.
* Holding: The court held that the amount attributed to defendant was a reasonable estimation of the actual and intended loss in the case. Because $3,500 was the average amount that defendant had charged on the credit cards that he did use, it was reasonable to assume that he would charge a like amount on the additional credit cards. Thus, the guideline calculation was correct. The court additionally affirmed the sentence after finding it was reasonable.
• 2B1.1 - Loss Amount
U.S. v. Blackwell, 05-4588 (8/29/06)
> Defendant was convicted of conspiracy to commit insider trading and the district court determined the loss amount at sentencing to be $908,853. This figure included relevant conduct loss amounts attributable to persons acquitted of insider trading and to conduct not charged in the indictment. Defendant appealed the loss calculation.
* Holding: Reaffirming pre-Booker precedent, the court held that the preponderance of the evidence standard applies to the loss calculation under § 2B1.1 and that district courts may consider acquitted or uncharged conduct at sentencing. Thus, the loss calculation was affirmed.
• 2B1.1 - Loss Amount
U.S. v. Triana, 05-3173 (11/2/06)
> Defendant was a doctor who was convicted of medicare fraud. As a result, his conditions of supervised release required that he not participate in a company that received medicare reimbursements and that he report to his probation officer any interest that he obtained in a company that received such reimbursements. Defendant subsequently secretly ran two businesses that submitted substantial claims to medicare and defendant siphoned the money out of the businesses through sophisticated means. Consequently, defendant was charged and convicted for conspiring to defraud medicare and making false statements to the federal probation department. Defendant claimed at sentencing that no loss resulted from the case because all of the money paid by medicare was paid based upon legitimate treatment to qualifying medicare patients. The district court disagreed and sentenced defendant based upon the entire amount that defendant’s companies received from medicare. Defendant appealed.
* Holding: The court held that it was irrelevant for loss calculation purposes that legitimate services were provided to qualifying medicare patients. The recipients of the medicare funds were defendant’s companies, and defendant was specifically prohibited by court order from receiving medicare funds. Thus, defendant’s companies were ineligible for the receipt of any medicare funds, regardless of the services they provided to patients. Accordingly, the district court loss calculation was affirmed.
• 2B1.1 - Loss Amount
U.S. v. Dedman, 06-6124 (5/29/08)
> Defendant was convicted of conspiracy to defraud the government of military pension benefits. At sentencing, the district court determined the loss amount based on the amount of benefits actually paid to defendant, and the amount of taxes withheld by the government on the benefits. Defendant appealed.
* Holding: Answering a question of first impression, the court held that the loss amount in a conspiracy to defraud the government may include the taxes that the government withheld on the wrongly paid benefits. In analyzing § 2B1.1, the court reasoned that the true measure of loss was based on the “value” defendant received, and this “value” was best measured by the amount of defendant’s claim against the government, not the amount that actually went into defendant’s bank account. Accordingly, the sentence was affirmed.
• 2B1.1 - Loss Amount
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was a homebuilder who defrauded construction lenders. Defendant was convicted of bank fraud and at sentencing the district court determined that defendant was responsible for 7.9 million in loss to eight different construction lenders. On appeal, defendant argued that the loss was one million dollars too high because the amount should have been reduced based upon collateral received by one of the lenders.
* Holding: The court found that defendant had a total of 6.9 million in loans from the construction lender in question, 3.7 million of which defendant fraudulently failed to repay. The court ruled that the collateral received by the construction lender should not be offset against only the 3.7 million in construction loans fraudulently withheld from the lender by defendant, but instead the collateral had to be prorated over the total 6.9 million dollar loan held by the lender. Thus, the collateral clearly did not cover the entire loss to the lender.
Additionally, the court held that the district court mistakenly calculated the loss amount in defendant’s favor at sentencing. The district court reduced the construction lender’s loss based on a settlement that the lender entered into with a third-party bank. The court ruled that a defendant’s loss amount should not be reduced by money paid to the victim by a third-party source. Thus, the court found that defendant actually received a lower loss calculation than was warranted by the facts, and the sentence was affirmed.
• 2B1.1 - Loss Amount
U.S. v. Simpson, 07-5840 (8/18/08)
> Defendant was convicted of mail fraud for defrauding a worker’s compensation insurance company out of insurance premiums by under-reporting the amount of people that he employed. At sentencing, defendant claimed that the loss was zero because the insurance company never had to pay unemployment compensation for any of the employees. The district court disagreed, and calculated the loss based on the insurance premiums that should have been paid. Defendant appealed.
* Holding: The court held that the correct measure of loss for USSG § 2B1.1 purposes was the amount of insurance premiums that were withheld from the insurance company. The court found no consequence to the fact that the insurance company never had to pay on any claims. The insurance premiums pay for coverage, and the failure to pay the premiums constituted loss to the carriers in the amount of the fair market value of the premiums at the time defendant should have made the payments. Accordingly, the district court ruling was affirmed.
• 2B1.1(b)(2) - Amount of Victims
U.S. v. Yager, 04-5151 (4/18/05)
> Defendant was convicted of mail theft for stealing checks and bank account information, fraudulently depositing the checks into various accounts, and withdrawing portions of the deposited amounts. The individuals whose checks and account information were stolen were only temporarily out money, because they were all promptly reimbursed by the five banks that were involved. At sentencing, the district court imposed a two-level increase pursuant to U.S.S.G. § 2B1.1(b)(2)(A) (more than ten victims) based upon the alleged losses of some of the account holders. Defendant appealed the two-level enhancement, and the government cross appealed claiming that the court should have applied a four-level enhancement for more than fifty victims pursuant to § 2B1.1(b)(2)(B).
* Holding: The court held that the term “victim” for purposes of § 2B1.1(b)(2) does not include individuals who are fully reimbursed for their temporary losses by a third party. In this case, the individuals who had their checks and/or account information stolen only suffered a short-lived monetary loss, and were immediately reimbursed by the banks. Accordingly, the only “victims” were the five banks, and thus no enhancement was appropriate. The case was reversed and remanded for resentencing in light of Booker.
• 2B1.1(b)(2) - Amount of Victims
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was a homebuilder who defrauded construction lenders out of millions of dollars. As a result, many homebuyers received liens against their homes. The liens were eventually released by a third-party bank as a result of a class-action lawsuit and settlement. At sentencing, the district court concluded that the homebuyers were not “victims” of the offense under USSG § 2B1.1(b)(2) because their losses were recouped. The government appealed the district court’s determination, but agreed to forgo the issue on appeal if the court rejected defendant’s arguments on appeal.
* Holding: A “victim” under § 2B1.1(b)(2) is a person who sustains “any part” of the actual loss from the offense. Distinguishing the case from U.S. v. Yager (See P.V., Issue #1), the court held that the homebuyers were “victims” for purposes of calculating the guideline loss amount. In contrast to Yager, the court found that the victims had no contractual relationship with the third-party bank which required the bank to recoup the loss, and the loss was not short-lived. To the contrary, the court held that the homebuyers were saddled with thousands of dollars of debt for an extended period, and were only able to recoup their losses as the result of a class-action law suit. Accordingly, the court ruled that district court erred in its loss computation. Nonetheless, the district court’s ruling was not reversed because the government agreed to forego the issue when defendant lost his sentencing appeal issues.
• 2B1.1(b)(12) - Serious Risk of Injury
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was a doctor who, in treating her cancer patients, provided partial doses of chemotherapy medicine but billed the federally funded health benefit program for full doses. Defendant was convicted of heath care fraud and at sentencing the district court applied the two-level enhancement, pursuant to USSG § 2B1.1(b)(12), because the offense involved the serious risk of death or bodily injury. Defendant appealed.
* Holding: The court held that the two-level enhancement was appropriate. The government presented an expert witness who established that administration of the partial doses created “a higher risk for having their cancer progress or return and potentially die from that.” Based upon this testimony, the enhancement was proper and the district court ruling was affirmed.
• 2B1.1(b)(12)(B) - Jeopardize Bank
U.S. v. Erpenbeck, 06-4247 (7/2/08)
> Defendant was a homebuilder who defrauded construction lenders out of millions of dollars. Defendant was convicted of bank fraud and at sentencing the district court determined that defendant substantially jeopardized the soundness of a bank, pursuant to USSG § 2B1.1(b)(12)(B). Accordingly, the district court imposed a four-level sentencing enhancement. Defendant appealed.
* Holding: The court held that the four-level enhancement was appropriate. Defendant substantially jeopardized the soundness of the bank by causing millions of dollars of loss to the bank, and as a result, the bank was forced to merge with another bank in order to avoid insolvency. Accordingly, the sentence was affirmed.
• 2B1.5(b)(1) - Value of Items Taken
U.S. v. Allen, 06-5077 (2/5/08)
> Defendants were convicted of the robbery of cultural heritage resources from a library. During the robbery, defendants absconded with several rare books, but dropped a couple of books in the library’s stairwell. At sentencing, the government argued that the value of the dropped books should be included in the calculation of the loss amount because (1) the loss under USSG § 2B1.5 included “intended loss” as defined in § 2B1.1, and, alternatively, (2) the books dropped in the stairwell were actually “taken.” The district court refused to apply the enhancement and the government appealed.
* Holding: First, the court held that § 2B1.5 (theft of cultural heritage resources) does not include in its definition of “value” the language from § 2B1.1 referring to “intended loss.” Thus, defendants could not be held accountable for intended loss under § 2B1.5. Second, the court held that, even though defendants dropped the books in question in the stairwell of the library, the books were nonetheless “taken,” and accordingly should be considered in determining the value of the stolen items under § 2B1.5(b)(1). Borrowing on robbery concepts from USSG § 2B3.1 (robbery), the court held that a robber “takes” an object when the robber “exercises dominion or control over that object.” Accordingly, the court found that defendants had “taken” the books in question when they removed them from their cabinets, even though they subsequently dropped them in the stairwell. Thus, the district court ruling was reversed and the case remanded for resentencing with instructions to include the value of the books dropped in the stairwell in the loss calculation.
• 2B1.5(b)(6) - Dangerous Weapon
U.S. v. Allen, 06-5077 (2/5/08)
> Defendants were convicted of conspiracy and the robbery of cultural heritage resources from a library. At sentencing, the district court imposed a two-level enhancement for using a dangerous weapon, pursuant to USSG § 2B1.5(b)(6), because defendants used a “stun pen” on one of the librarians. While using the “stun pen” and trying to physically subdue the librarian, defendants told her that if she continued to struggle, “it would only hurt more.” The librarian expressed that she felt a tingle from the stun pen, that it left a small bruise, and that she feared being zapped. Defendants presented an expert witness at sentencing who testified that the pen could not cause serious injury to a person. Defendants appealed the two-level enhancement.
* Holding: A weapon is a dangerous weapon, even if it is not capable of inflicting serious bodily injury, if it closely resembles such a weapon or if the defendant used it in a manner to create the impression that it was such a weapon. In the case, the court held that the facts supported the conclusion that the defendants acted as if the weapon could inflict serious injury and the victim believed their representations. Accordingly, the two-level enhancement was affirmed.
• 2B3.1(b)(2) - Firearm Otherwise Used
U.S. v. Bolden, 05-5407 (3/15/07)
> Defendant was convicted of a Hobbs Act robbery for masterminding the robbery of an armored car at a mall. During the robbery, two codefendants pointed guns at security guards and threatened them. Defendant argued at his sentencing hearing that he should receive only a five-level enhancement, under USSG § 2B3.1(b), because the firearms were “brandished or possessed.” Instead, the district court imposed a six-level enhancement under § 2B3.1(b), finding that the guns were “otherwise used.” Defendant appealed.
* Holding: The court held that the codefendants’ actions of pointing the guns at the security guards and verbally threatening them constituted more than merely “brandishing” firearms. Focusing on the immediacy of the threat, the court ruled that when a defendant points a gun at someone and makes a demand, he communicates an implicit threat that he will shoot if the person does not comply. In the court’s view, this was more serious conduct than merely brandishing a firearm, which implies the intent to commit a future act with the gun and expresses the defendant’s capability to use it. The court emphasized that the application note to § 2B3.1(b) was amended in 2000 to illustrate this distinction. Accordingly, the court held that the five-level enhancement for “otherwise us[ing]” the firearm was appropriate.
• 2B3.1(b) - Robbery Loss Amount
U.S. v. Bolden, 05-5407 (3/15/07)
> Defendant was convicted of a Hobbs Act robbery for masterminding a robbery of an armored truck at a mall. During the course of the robbery, the defendants obtained $926,570 including cash and checks. Pursuant to USSG § 2B3.1(b), the district court enhanced defendant’s offense level by four points for a loss of more than $800,000. Defendant argued on appeal that the checks should not have counted against the loss because the bank could easily prevent any loss from the stolen checks and there was no effort made to negotiate the checks.
* Holding: The court held that it did not have to decide the question of whether the face value of the unnegotiated checks would count toward the loss amount because it found that the loss amount was above $800,000, the minimum for the four-level enhancement, even without including the checks in question. Thus, the sentence was affirmed.
• 2D1.1(a)(1) - Prior Similar Drug Offense
U.S. v. King, 07-1012 (2/14/08)
> Defendant was convicted of distributing narcotics resulting in a person’s death. At sentencing, the district court enhanced defendant’s sentence five levels under USSG § 2D1.1(a)(1) because defendant had a “prior conviction for a similar offense.” Defendant argued on appeal that the prior conviction should not count because it was outside the applicable time periods of chapter 4 of the guidelines.
* Holding: Answering an open question in the Sixth Circuit, the court held that the time periods on counting prior convictions from chapter 4 of the guidelines do not apply to § 2D1.1(a)(1). The court emphasized that § 2D1.1(a)(1) did not reference chapter 4 in this regard, and that there was no authority for the proposition that the chapter 4 time period operated as a default time period for the guidelines generally. Accordingly, defendant’s sentence was affirmed.
• 2D1.1 - Drug Quantity
U.S. v. Gardner, 04-1161 (8/1/05)
> Defendant was convicted of possession of crack cocaine with intent to distribute. At sentencing, the district court increased defendant’s offense level based upon approximately $16,000 found in defendant’s vehicle. The court converted the cash into an additional 598.74 grams of crack cocaine, and accordingly sentenced defendant to 210 months in prison. Defendant appealed.
• Holding: The court held that the district court did not err in converting the cash to crack. The court first confirmed prior precedent that relevant conduct drugs amounts need only be proven by a preponderance of the evidence. Then the court concluded that the government had met its burden of proving that the cash was from the sale of crack by showing that defendant was observed late at night in a high drug trafficking area, he was in a pickup not registered to him, the cash was found close to crack cocaine, the cash was wrapped in $1000 bundles which is consistent with drug trafficking, and more crack and utensils covered with cocaine were found at defendant’s apartment. Thus, the court found the drug quantity calculation proper, but nonetheless remanded for resentencing so that the district court could sentence defendant under the non-mandatory guideline regime established by Booker.
• 2D1.1 - Drug Quantity
U.S. v. Salas, 05-5547 (8/1/06)
> Defendant was convicted of possession with intent to distribute cocaine. The conviction was based upon the fact that defendant was found driving from Kentucky to Florida with 3 kilos of cocaine and $20,000 in a cooler in the trunk. At sentencing, an agent testified that cocaine sold for about $20,000 per kilo in Kentucky and $18,000 per kilo in Florida, and that it appeared from the circumstances that the $20,000 was proceeds from the sale of 1 kilo of cocaine. Based upon this testimony, the district court held defendant responsible for 4 kilos of cocaine. Defendant appealed.
* Holding: The commentary to USSG § 2D1.1 provides that where a drug seizure does not reflect the scale of the offense, the district court may approximate the quantity of the substance. Money may be converted to drug amounts as long as the government proves by a preponderance of the evidence the conversion ratio and the amount of money attributable to the drug activity. Distinguishing the prior Sixth Circuit case of U.S. v. Sandridge, the court found that the government had sufficiently shown that the money was probably proceeds from a drug sale and had established the conversion ratio. Accordingly, the court affirmed the district court’s determination that defendant was responsible for 4 kilos of cocaine.
•2D1.1/1B1.3 - Drugs - Relevant Conduct
U.S. v. Gonzalez, 06-3303 (8/30/07)
> Defendant was charged with possession of cocaine with intent to distribute. At trial, the parties stipulated that defendant drove a car that contained about a kilogram of cocaine in a secret compartment. Defendant claimed that he did not know about the drugs in the car. In response, the government offered evidence that defendant knowingly engaged in two prior transactions involving about 50 grams each. The jury returned a special verdict of guilty, finding that defendant was responsible for less than 500 grams of cocaine. At sentencing, the district court reasoned that the only way to reconcile the jury verdict was that the jury believed defendant was guilty of transporting the kilogram of cocaine, but that defendant only “knew” that the amount would be about 50 grams, based on the prior two transactions. Thus, applying the “reasonable foreseeability” test of USSG § 1B1.3, the district court held that defendant was responsible only for about 50 grams, and sentenced him accordingly. The government appealed.
* Holding: First, the court noted that §1B1.3(a)(1)(A) holds a defendant responsible for “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or wilfully caused by defendant.” The court then compared this provision with § 1B1.3(a)(1)(B), which provides that “in a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others ,whether or not charged as a conspiracy), a defendant is responsible for all reasonably forseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity.” The court held that the import of the provisions is that a defendant is responsible for actions that he personally undertakes, aides, or abets. No reasonable foreseeability requirement applies in such a case. Thus, the court found that defendant was responsible for the amount of drugs that he transported, regardless of whether he knew the actual amount of drugs, or whether the amount was reasonably foreseeable to him. The reasonable foreseeability requirement only comes into play when a defendant’s liability for the offense relies on a “jointly undertaken criminal activity” theory. Accordingly, the court found that the district court erred and remanded the case for resentencing. The court held that, on remand, the district court was bound by the 5 year statutory mandatory minimum sentence for a drug amount in excess of 500 grams, pursuant to 18 USC § 841(b).
• 2D1.1 - Drug Amount
U.S. v. Wittingen, 06-4281 (3/27/08)
> Defendant was convicted of distributing meth to an informant. In the plea agreement, the parties agreed that defendant was responsible for between 2.5 and 5 grams of meth which, with other enhancements and reductions, yielded a sentencing guideline range of 12-18 months incarceration. The PSR concurred in the recommendation from the plea agreement. The plea agreement acknowledged that the government could have proven other distribution by defendant. At sentencing, the district court determined that defendant was responsible for at least 180 grams of meth, based upon statements that defendant made to the officers upon his arrest, which he did not dispute. Thus, the court adjusted defendant’s guideline range up to 57-71 months, and imposed a sentence at the bottom end of the range. Defendant appealed.
* Holding: The court held that the district court did not err in its drug quantity calculation. The district court was not bound by the amount of drugs stipulated in the plea agreement, and defendant was advised of this fact at his guilty plea hearing. The district court’s calculation was based upon defendant’s admission, and there was no countervailing evidence or argument. Accordingly, defendant’s sentence was affirmed.
• 2D1.1 - Drug Amount
U.S. v. Jeross, 06-2257 (4/4/08)
> Defendant was convicted of conspiracy to distribute ecstacy. At sentencing, the district court determined that defendant was responsible for 100,000 pills. The district court also determined the total weight of the pills by determining the actual average weight of the 2,499 pills recovered by the DEA, and multiplying it by 100,000 pills. Defendant appealed.
* Holding: If the exact amount of drugs is undetermined, an estimate by the district court will suffice as long as a preponderance of the evidence supports the estimate. The court held that the district court’s estimate as to the drug amount was supported by the fact that a coconspirator testified in detail at the sentencing hearing that he delivered at least 100,000 pills to defendant’s residence over a period of time. Additionally, the defendant’s own records, and an agent’s estimate based upon the cash defendant received, further supported the pill amount. Finally, the court found unpersuasive the sworn affidavit of a codefendant (defendant’s boyfriend) that defendant was involved with far less than 100,000 pills.
Additionally, the court held that utilizing the actual weight of the 2,499 pills, then multiplying that weight by the full 100,000 pills, was a reasonable method of determining drug weight. Further, the court ruled that the applicable guideline for ecstacy required that the district court consider the weight of the entire pill, not the “pure” weight (only the actual amount of controlled substance in the pill). Accordingly, the sentence was affirmed.
• 2D1.1 - Drug Amount - Marijuana Plants
U.S. v. Olsen, 07-1706 (8/14/08)
> Defendant was convicted of possession of marijuana with intent to distribute based upon 168 lives plants, and 137 harvested plants found at her residence. At sentencing, the district court attributed 100 grams per plant, pursuant to Application Note 3 to USSG § 2D1.1, for purposes of determining the drug weight. Defendant argued that the actual weight of the harvested plants was only 557.8 grams total, and that the 1-to-100 ratio should not apply to the harvested plants. The district court rejected defendant’s argument and she appealed.
* Holding: The court held that the 1-to-100 ratio applies to harvested marijuana plants only where defendant is convicted of manufacturing marijuana. Where defendant is convicted, however, of a distribution or possession offense, the 1-to-100 ratio applies only to live plants, not harvested plants. Accordingly, the court reversed the district court’s ruling and remanded the case for resentencing.
• 2D1.1 - Drug Amount
U.S. v. Vasquez, 07-1248 (3/23/09)
> Defendant was charged with drug trafficking and at sentencing the district court determined that defendant was responsible for seven kilos of cocaine. This quantity was based on the amount that defendant negotiated with an informant and undercover officer. Defendant appealed and argued that the drug amount was not supported by the evidence.
* Holding: The court held that the government has the burden of establishing the drug amount by a preponderance of the evidence. However, once the government proves a negotiated amount to be transferred, if defendant disagrees, the burden shifts to the defendant to prove that he or she was not capable of producing that amount. In the case, the court held that the government established by a preponderance that 7 kilos was negotiated, and that the defendant did not prove that he was incapable of providing that amount. Accordingly, the sentence was affirmed.
• 2D1.1 - Drug Amount
U.S. v. Vandewege, 07-2250 (4/8/09)
> Defendant was convicted of distribution of cocaine. At sentencing, the district court held defendant responsible not only for powder cocaine, which he threw out the window during a police pursuit, but also the 12.3 grams of crack found under the passenger-side floor mat. Defendant himself neither admitted nor denied his knowledge of the crack, but his attorney argued on appeal that there was no direct evidence to establish his knowledge of its existence.
* Holding: The court held that the district court did not err in finding that the crack was part of defendant’s course of conduct in cocaine distribution. The court found that the fact that defendant threw a bag of cocaine out the window while fleeing from police supported the inference that he was trying to rid himself of drugs, but was unable to reach the crack on the other side of the car to discard it. Accordingly, the district court’s ruling in this regard was affirmed.
• 2D1.1 - Drug Amount
U.S. v. White, 07-2404 (4/16/09)
> Defendant was convicted of narcotics and weapons violations and at sentencing the district court calculated a drug amount in excess of 150 kilos of cocaine, thus calling for a life sentence under the guidelines. Defendant challenged the credibility of the witnesses at trial, but not the actual computation of the drug amount. The district court imposed a life sentence and defendant appealed.
* Holding: The court held that a drug amount need only be proven by a preponderance of the evidence and may be an estimate, but the estimate must “err on the side of caution and likely underestimate the quantity of drugs actually attributable to defendant.” The court found that the parties mistakenly agreed that a witness attested that defendant had provided approximately 400 kilos of cocaine to him, when in fact, the witness testified that the amount was, at most, 30 kilos. Adding all amounts mentioned at trial, the court found that the proper conservative estimate of the amount of cocaine was 145 kilos, which would reduce defendant’s offense level by two points. This reduction would change defendant’s guideline range from life to 360-life. Accordingly, the court remanded the case for resentencing and a recomputation of the drug amount.
• 2D1.1 - Drug Amount
U.S. v. Russell, 07-2354 (2/19/10)
> Defendant was convicted of drug and firearm offenses. At sentencing, the district court converted the $11,375 seized to crack cocaine, and sentenced defendant accordingly. Defendant argued that the money was attributable to other activities such as the sale of marijuana and methadone, and to managing prostitutes. The district court reasoned that the guideline range – 150-500 grams of crack – would be the same if the full $11,375 were converted to crack, or only $4,700 worth of the money. Accordingly, the district court determined that defendant distributed at 150 grams of crack. Defendant appealed.
* Holding: Pursuant to Application Note 12 to USSG § 2D1.1, where the amount of drugs seized does not reflect the scale of the offense, a district court may approximate the quantity of drugs based on “the price generally obtained for the controlled substance, financial or other records, similar transactions in controlled substances by the defendant, and the size or capability of any laboratory involved.” Given the evidence of defendant’s extensive trafficking in crack cocaine, the court held that it was reasonable for the district court to estimate that at least $4,700 (37%) of defendant’s cash was the proceeds from crack sales. Accordingly, defendant’s sentence was affirmed.
• 2D1.1(b)(1)-Drugs-Firearm Enhancement
U.S. v. Galvan, 04-1741 (7/13/06)
> Defendant was convicted of a drug conspiracy and at sentencing the district court assessed a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm. A coconspirator testified that defendant told him to bring a gun to the drug transaction, and the coconspirator then told another individual to bring the gun, which he did. The district court found defendant liable for the gun under the theory of constructive possession. Defendant appealed.
* Holding: For purposes of § 2D1.1(b)(1), a defendant may be held responsible for constructively possessing a gun if she knows about the gun and has ownership, dominion, or control over the firearm, or dominion over the premises where the firearm is located. If the firearm is part of a conspiracy, the court need only find that it was reasonably foreseeable to the defendant that the gun was possessed by a member of the conspiracy. The court held that the facts of the case established that it was reasonably foreseeable to the defendant that the gun was present at the drug transaction and that he constructively possessed the gun. Therefore, the sentence was affirmed.
• 2D1.1(b)(1) - Firearm Enhancement
U.S. v. Catalan, 06-5259 (8/22/07)
> Defendant traveled from Texas to Tennessee to deliver a kilogram of cocaine to a coconspirator at his residence. Through use of a confidential informant, the government obtained a warrant to search the residence, and upon executing the warrant, found defendant in the master bedroom. Also in the bedroom was a gun. The gun belonged to the coconspirator. Defendant was subsequently convicted of conspiracy and distribution of cocaine and at the sentencing hearing the district court applied a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm. Defendant challenged application of the firearm enhancement on appeal.
* Holding: In order to impose the two-level firearm enhancement, the government must prove by a preponderance of the evidence that (1) the defendant actually or constructively possessed the firearm, and (2) the possession was during the commission of the offense. If the government makes this showing, the burden shifts to the defendant to prove that it was clearly improbable that the gun was connected to the offense. The court held that one coconspirator is responsible for a gun possessed by another coconspirator during a transaction if such possession was reasonably foreseeable. In the case, the court held that it was reasonably foreseeable to defendant that the coconspirator would have a gun during the drug transaction because of the amount of cocaine involved and its value, and the fact that the gun was found in the room where defendant was arrested. Thus, the enhancement was affirmed.
• 2D1.1 (b) - Firearm Enhancement
U.S. v. Ward, 06-5136 (10/23/07)
> Defendant was convicted of a substantive drug trafficking offense. At sentencing, the district court applied a two-level enhancement to defendant’s guideline range based upon a co-defendant’s possession of a firearm during the drug transaction. Defendant argued on appeal that he could not be held responsible for a co-defendant’s possession of firearm, pursuant to USSG § 2D1.1(b), where defendant was not charged with or convicted of a conspiracy.
* Holding: Answering an open question in the Sixth Circuit, the Court held that a defendant need not be charged with a conspiracy in order to be held responsible for a co-defendant’s firearm possession under § 2D1.1(b). The court reasoned that, pursuant to the relevant conduct rules of § 1B1.3, a defendant is liable for reasonably foreseeable actions of others if they are engaged in a jointly undertaken criminal activity, regardless of whether a conspiracy is charged. Accordingly, the court held that application of the two-level enhancement was proper and defendant’s sentence was affirmed.
• 2D1.1(b)(1) - Firearm Enhancement
U.S. v. Wheaton, 06-4080 (2/19/08)
> Defendant was convicted of a drug conspiracy and at sentencing the district court applied a two-level enhancement under USSG § 2D1.1(b)(1) for possession of a firearm. The gun in question was found in a couch in one of the houses associated with the conspiracy. Defendant appealed application of the two-level enhancement.
* Holding: The firearm enhancement under § 2D1.1(b)(1) applies if a defendant actually or constructively possessed a firearm. If the government proves possession, the burden shifts to the defendant to prove that it was clearly improbable that the firearm was connected to drug trafficking. In the case, the court found sufficient evidence of constructive possession. The residence was connected to the drug conspiracy, defendant admitted that he had lived in the home at one point, and, although no drugs were found by the government in the home, evidence established that it was used for drug sales. Accordingly, the application of the enhancement was affirmed.
• 2D1.1(b)(1) - Firearm Enhancement
U.S. v. Driver, 04-4470 (8/1/08)
> Defendant was convicted in a drug conspiracy and at sentencing the government requested that defendant’s sentence be increased by two levels, pursuant to USSG § 2D1.1(b)(1), for possessing a firearm during the drug conspiracy. The government based its argument on a witness’ trial testimony that he rode in a vehicle with defendant during the course of the conspiracy and, at the time, defendant had drugs and a gun in the vehicle. The district court declined to apply the enhancement and the government appealed.
* Holding: The court held that the trial testimony established, by a preponderance of the evidence, that defendant possessed a firearm during the drug conspiracy, and while transporting drugs. Accordingly, the district court’s ruling was reversed.
• 2D1.1(b)(1) - Firearm Enhancement
U.S. v. Benson, 08-1131 (1/12/10)
> Defendant was convicted of participating in a drug conspiracy. Firearms were found both at defendant’s residence and at a coconspirator’s residence. As a result, the district court applied a two-level enhancement to defendant’s sentence under USSG § 2D1.1(b)(1) based on its finding that defendant possessed the firearms during the drug conspiracy. Defendant appealed.
* Holding: In order to apply the two-level enhancement under § 2D1.1(b)(1), the government must first show that defendant possessed the firearms during the commission of the drug offense. If this showing is made, the burden shifts to the defendant to prove that it was “clearly improbable” that the guns were connected to the offense. In the case, the court first held that the two-level enhancement was appropriate based on the firearms found in defendant’s residence. At defendant’s home, the government found two guns and drug paraphernalia during the time period of the conspiracy. As defendant made no showing of a clear improbability that the guns were connected to the drug offense, application of the enhancement on this basis was proper.
Additionally, the court held that defendant was also responsible for the firearms found in the codefendant’s home based on the conspiracy theory. A defendant is responsible for firearms possessed by a coconspirator where the possession was in furtherance of the conspiracy and was either known to the defendant or reasonably foreseeable. The court found that it was reasonably foreseeable to defendant that the coconspirator would possess firearms at his residence given that defendant knew that he was a major drug trafficker and kept a significant drug supply and thousands of dollars of currency at his residence. Accordingly, the court found no clear error in the district court’s determinations and affirmed defendant’s sentence.
• 2D1.1(b)(5) - Substantial Risk of Harm
U.S. v. Davidson, 03-6544 (5/18/05)
> Defendants were convicted of meth manufacturing and at sentencing, they both received three-level enhancements for creating a substantial risk of harm pursuant to U.S.S.G. § 2D1.1(b)(5)(B). The district court based this conclusion upon the facts that Defendants had no plan for disposal of the hazardous substances, and because, although the lab was in a remote location, the pad lock on the door to the barn would prevent those locked inside from getting out in an emergency, and those locked outside from getting in to provide assistance. Defendants appealed, and during the pendency of the appeal Booker was decided.
* Holding: Pursuant to application note 20 to § 2D1.1, in determining whether the substantial risk of harm enhancement applies, courts must consider (1) the quantity of hazardous materials and the manner in which stored, (2) manner of disposal and likelihood of release, (3) duration and extent of operation, and (4) location and number of lives at risk. The court held that the district court’s reasons did not support the enhancement because the absence of plans for disposal, in and of itself, is not sufficient to support the second factor, and because it felt that the padlock on the barn door actually decreased the risk of harm to others. Accordingly, the court held that the meth lab did not pose a substantial risk of harm and ruled that the three-level enhancement was not proper. The case was remanded for resentencing in light of Booker.
• 2D1.1 - Methamphetamine
U.S. v. Martin, 04-6428 (2/21/06)
> Defendant was convicted in a meth case. The defendant possessed pseudoephedrine, a precursor to making meth. According to the conversion table in U.S.S.G. § 2D1.1, two grams of pseudoephedrine is considered to be one gram of meth for guideline calculation purposes. The Sentencing Commission developed this conversion rate based upon a statutory directive from Congress to consider “scientific, law enforcement, and other data” found by the Commission to be appropriate. Defendant challenged the 50% conversion rate as being developed in contravention of Congress’ directive because, defendant claimed, the Commission considered only law enforcement data in formulating the rate.
* Holding: First, the court held that Congress’ directive did require the Commission to consider both scientific and law enforcement data. Second, the court held that the record presented by defendant did not establish that the Commission considered only law enforcement data. The court relied upon a presumption of correctness that accompanies findings of the Commission and held that defendant had not established that the Commission failed to consider scientific data. Finally, the court ruled that the Commission’s adoption of the 50% conversion rate was not arbitrary or capricious.
• 2D1.1(b) - Meth - Risk of Harm to Minor
U.S. v. Whited, 05-5959 (1/9/07)
> Defendant was arrested in a motel room with a 17 year old girl, finished meth, and an operational meth lab. Further, the room smelled of meth chemicals. Defendant pled guilty to manufacturing meth and at sentencing the district court applied a 6 level enhancement under USSG § 2D1.1(b) for causing a substantial risk of harm to the life of a minor. Defendant appealed.
* Holding: The court held that four factors must be evaluated in assessing whether the risk of harm enhancement is applicable: (1) the quantity of hazardous materials and manner in which stored; (2) the manner of disposal of materials and likelihood of release into the environment; (3) the duration of the offense and the extent of the manufacturing operation; and (4) the location of the lab. In considering the factors, the court held that defendant had placed the juvenile at substantial risk. The court found defendant’s claim that he did not know the age of the girl to be irrelevant for purposes of the guideline. Accordingly, the sentence was affirmed.
• 2D1.8 - Maintaining a Drug Establishment
U.S. v. Hunt, 06-5690 (6/7/07)
> Defendant was convicted of establishment of a drug distribution operation under 21 USC § 856. At sentencing, he argued that his offense level should be reduced to level 26 because, pursuant to USSG § 2D1.8(a)(2), he “had no participation in the underlying controlled substance offense other than allowing use of the premises.” The district court rejected defendant’s argument and defendant appealed.
* Holding: The court held that defendant was not entitled to the reduction for merely allowing the use of the premises because the evidence established that he was guilty of the underlying drug trafficking. Although cooperating witness’ testimony must be viewed with greater suspicion, two separate witnesses indicated that defendant was involved in the drug trafficking. Further, the physical evidence found at the apartment suggested that defendant was involved. Thus, the sentence was affirmed.
•2D1.10 - Drug Manufacturing
U.S. v. Eversole, 06-5215 (5/31/07)
>Defendant was convicted of endangering human life while manufacturing meth. At sentencing, the district court applied USSG § 2D1.10 which required a base offense level determined by the drug quantity table at § 2D1.1, and a three-level increase because the drug involved was meth. Defendant appealed and argued that the application of the three-level increase constituted impermissible double counting.
* Holding: The court found that no impermissible double counting occurred. Admittedly, § 2D1.10 does consider the fact that the drug involved was meth in more than one way. First, the base offense level is calculated on the drug quantity table based on the type and quantity of drug involved – in this case meth. Second, an additional three-level increase is imposed if the drug is meth. Thus, the fact that the drug is meth is a part of the calculus for the base offense level, and is the basis for a three-level additional enhancement. Nonetheless, the court ruled that because “the enhancement addresses a conceptually distinct harm not necessarily taken into account by the base offense level, and the enhancement is specifically authorized by the Sentencing Commission following a congressional directive,” no impermissible double counting occurred. Thus, the sentence was affirmed.
• 2F1.1 - Loss Amount
U.S. v. Tudeme, 05-6258 (8/9/06)
> Defendant was convicted of using another person’s identity to commit a felony and at sentencing the district court held defendant responsible for in excess of $120,000 in loss. The district court justified the loss amount in two ways. First, the court found that defendant opened a bank account with a fake I.D. and then another person deposited a $155,000 counterfeit check into the account. Second, defendant testified that the purpose of the account was to receive illegal immigrant paychecks. Based upon this testimony, the court concluded that multiple paychecks at “$20 to 30,000 a whack” would have been deposited into the account, thus easily accumulating more than $120,000 in loss. Defendant appealed.
* Holding: First, the court held that the $155,000 fraudulent check did not support the loss amount. Defendant testified at the sentencing hearing that the check was deposited by another individual and that he did not know anything about the check or that it had been deposited. Given that the purpose of the account was to deposit illegal alien paychecks, the court held that it was not reasonably foreseeable to defendant, pursuant to the relevant conduct provisions of § 1B1.3, that an insufficient funds check far exceeding a normal payroll check would be deposited. Second, the court held that the estimated amount of the illegal alien payroll checks did not support the loss figure determined by the district court. Specifically, the court ruled that the conclusion that the payroll checks would be “$20 to 30,000 a whack” was completely unsupported by the record. Accordingly, the sentence was vacated.
• 2F1.1 - Loss Amount
U.S. v. White, 05-3403 (6/11/07)
> Defendant was convicted of medicare fraud and at sentencing the district court determined the loss based on figures that were derived from the total amount of medicare payments received by defendant’s companies. On appeal, defendant argued that the loss amount should be calculated instead based on the medicare payments that were improperly paid to his companies.
* Holding: The court agreed with defendant that the medicare fraud loss should be determined based only on medicare payments that were unlawfully paid to defendant’s companies. In the case, this meant the amount of the medicare payments that were in violation of the “related party” rules that were the subject of defendant’s prosecution. Accordingly, the sentence was vacated and the case remanded for resentencing.
• 2G1.3(b)(2) - Undue Influence of Minor
U.S. v. Lay, 07-4062 (10/13/09)
> Defendant was convicted of traveling with intent to engage in sexual conduct with a minor. At sentencing, the district court applied a two-level enhancement, pursuant to USSG § 2G1.3(b)(2), because defendant unduly influenced a fifteen year old to engage in sexual conduct. Defendant testified at the sentencing hearing that the minor actually induced him (age 53) to engage in sexual conduct. Additionally, defendant argued that application of the enhancement was impermissible double counting. The district court disagreed, and defendant appealed.
* Holding: Pursuant to § 2G1.3(b)(2), comment. (n.3), where a defendant is at least ten years older than the minor, a rebuttable presumption is created that the defendant unduly influenced the minor. The court found that defendant did not rebut the presumption even though the minor proposed the meeting with defendant, lied to defendant about being abused, and initiated the initial communication between the two. There was evidence in the record that the minor was “troubled,” and that defendant used manipulative tactics to induce her. Accordingly, the two-level enhancement was appropriate.
Additionally, the court ruled that the enhancement was not double counting. The court held that double counting occurs where “precisely the same aspect” of a defendant’s conduct is “factored into [the defendant’s] sentence in two separate ways.” The court found that the offense of conviction – traveling to engage in sexual conduct – punished a different aspect of defendant’s conduct than inducing a minor to commit a sex act, which was addressed by the two-level enhancement. Accordingly, defendant’s sentence was affirmed.
• 2G1.3(b)(3) - Using Computer to Induce
U.S. v. Lay, 07-4062 (10/13/09)
> Defendant was convicted of traveling with intent to engage in sexual conduct with a minor. At sentencing, the district court applied a two-level enhancement, pursuant to USSG § 2G1.3(b)(3), because defendant used a computer to induce a minor to engage in sexual conduct. Defendant argued that he never actually sent specific sexual requests by computer, and thus the enhancement was inapplicable. Defendant appealed.
* Holding: The court held that the two-level enhancement applies to a defendant who uses a computer to begin the pursuit of an inappropriate sexual relationship with a minor, even though no specific sexual requests are advanced by computer. Specifically, the court found that defendant’s communications with the minor for two months, during which time he built up her trust, were sufficient to support the enhancement. Accordingly, defendant’s sentence was affirmed.
• 2G2.1(b)(2)(A) - Sexual Contact
U.S. v. Shafer, 07-2574 (7/21/09)
> Defendant was convicted of enticing a minor to engage in sexually explicit conduct for purposes of producing visual depictions. At sentencing, the district court imposed a two-level enhancement under USSG § 2G2.1(b)(2)(A) because the court found that defendant had “sexual contact” (as defined in 18 USC § 2246(3)) with the minor, based on defendant’s act of enticing the minor to self-masturbate. Defendant appealed and the original panel remanded the case in order to determine whether the intent element of § 2246(3) (intent to “abuse, humiliate, harass, degrade or arouse or gratify the sexual desire of any person”) was met in terms of the “sexual contact.” (See P.V. Issue #25). In the original briefing, the government argued that the victim’s intent was the relevant inquiry under the guideline. In its rehearing argument, the government argued that the court could only consider defendant’s intent, not that of the victim.
* Holding: In an amended opinion, the court held that the defendant’s intent was the only relevant consideration under § 2G2.1(b)(2)(A) and § 2246(3). In so holding, the court relied heavily on the legislative history of the statute and ruled that “where the text of a statute conflicts with the statute’s legislative clear purpose, the natural reading of the statute is properly informed by the underlying purpose and overall framework of the Act.” As such, the court found that the clear legislative purpose was that only a defendant’s intent was relevant under § 2246(3), and not the intent of the minor victim. Additionally, the court found that defendant’s intent was easily inferred in the case: “to arouse or gratify either his own sexual desires or those of [the minor].” Accordingly, the original panel decision was vacated, and defendant’s sentence was affirmed.
• 2G2.1(d)(1) - Exploitation of Minors
U.S. v. Brown, 07-4197 (8/26/09)
> Defendant took numerous naked pictures of his infant, twin granddaughters. Defendant was convicted, among other offenses, of producing visual depictions of minors engaged in sexually explicit conduct, pursuant to 18 USC § 2251(b). At sentencing, the district court applied an enhancement, pursuant to USSG § 2G2.1(d)(1), because the court found that defendant had produced sexually explicit images of two children - namely his twin granddaughters. Defendant appealed, and argued on appeal that only one of the two children was depicted engaged in sexually explicit conduct.
* Holding: The phrase “sexually explicit conduct” is defined as the “lascivious exhibition of the genitals or pubic area of any person.” In order to assess whether exhibition is “lascivious,” the court considers six factors: (1) whether the focal point is the genitalia or pubic area; (2) whether the setting is sexually suggestive; (3) whether the child is depicted in an unnatural pose or inappropriate attire considering the child’s age; (4) whether the child is fully or partially clothed; (5) whether the visual depiction suggests sexual coyness or willingness to engage in sexual activity; and (6) whether the visual depiction is intended or designed to illicit a sexual response in the viewer.
Answering an open question in the Sixth Circuit, the court held that analysis of the sixth factor requires application of a “limited context” test. Under this analysis, the court may consider only the “contextual evidence to the circumstances directly related to the taking of the images,” including (1) where, when, and under what circumstances the pictures were taken, (2) the presence of other images of the same victims taken near the same time, and (3) any statements made by the defendant about the images. The court specifically noted that, in conducting the analysis, the district court was not permitted to consider factors that do not relate directly to the taking of the images, such as past bad acts of the defendant, the defendant’s possession of other pornography, and other generalized evidence regarding “unseemliness.” In considering all of the factors, the court determined that the pictures of defendant’s twin grandchildren were “lascivious,” and accordingly the court affirmed the enhancement.
• 2G2.2/2G2.4 - Child Pornography
U.S. v. Williams, 04-6191 (6/9/05)
> Defendant was convicted of two counts of possession of child pornography in violation of 18 U.S.C. § 2252. At sentencing, the district court applied the 2001 version of the guidelines, and applied § 2G2.2, which covers “trafficking” in child pornography. On appeal, defendant argued that the court should have applied § 2G2.4 of the guidelines for “possession,” which yields a lower offense level. During the pendency of the appeal, Booker was decided.
* Holding: The court held that, pursuant to the 2001 version of the guidelines, where a defendant merely possesses child pornography, but does not transmit it, the proper guideline is § 2G2.4, and not § 2G2.2. Accordingly, the case was reversed and remanded for resentencing in light of Booker. The child pornography guidelines have since been amended, and § 2G2.4 has been deleted.
• 2G2.2(b)(1) - Reduction for Possession
U.S. v. Fore, 06-5518 (11/8/07)
> Defendant was arrested in Kentucky, while in transit from Florida to Ohio. Upon his arrest, officers found child pornography in his vehicle. Defendant was subsequently convicted of interstate transportation of child pornography and possession of child pornography. At sentencing, defendant argued that he should receive a two-level reduction under USSG § 2G2.2(b)(1) because he did not intend to distribute the child pornography. The district court declined to apply the reduction, and defendant appealed.
* Holding: Pursuant to § 2G2.2(b)(1), a defendant may receive a two-level reduction if (1) the base offense level is 22, (2) the defendant’s conduct was “limited to the receipt or solicitation” of child pornography, and (3) the defendant did not intend to “traffic in, or distribute, such material.” Deciding an issue of first impression in the Sixth Circuit, the court held that defendant failed to meet the second prong of the subsection where he not only possessed the child pornography, but committed the separate offense of transporting the pornography in interstate commerce. Under these circumstances, defendant’s conduct was not “limited to the receipt or solicitation” of child pornography, and the two-level reduction was appropriately denied.
• 2G2.2(b)(4) - Child Porn - Sadistic Images
U.S. v. Duane, 06-6536 (7/17/08)
> Defendant was convicted of receiving and possessing child pornography and at sentencing the district court imposed an enhancement for sadistic images. Defendant argued on appeal that the enhancement should not apply where a very small number of the total images (15 out of 4,000) portrayed sadistic conduct, thus reflecting that defendant did not intend to possess the sadistic images.
* Holding: First, the court held that it is irrelevant whether defendant intended to possess sadistic images or not. Further, the court held that the guideline enhancement applied regardless of the number of sadistic images. Accordingly, the sentence was affirmed.
• 2G2.2(b)(5) - Pattern of Sex Abuse
U.S. v. Paull, 07-3482 (1/9/09)
> Defendant was convicted of possession of child pornography and at sentencing the district court applied a five-level guideline enhancement based on its conclusion that defendant engaged in a pattern of sex abuse of a minor. The enhancement was based on the letter of a victim (the friend of defendant’s son) that defendant had sexually abused the victim. The information was corroborated by the victim’s family members. Defendant appealed and argued that the district court erred in relying on the hearsay information in the letter, and that the evidence was insufficient to support the enhancement.
* Holding: The court held that hearsay is admissible at sentencing so long as it bears “some minimal indicia of reliability.” Further, the court ruled that the Confrontation Clause does not apply at a sentencing hearing. Finally, the court found that the victim’s letter, which was corroborated by family members, established the applicability of the enhancement by a preponderance of the evidence. Accordingly, the district court ruling was affirmed.
• 2G2.3(b)(3)-Sadistic or Masochistic Images
U.S. v. Groenendal, 07-2430 (2/26/09)
> Defendant was convicted of possession of child pornography and at sentencing the district court imposed a four-level enhancement because the images portrayed “sadistic or masochistic conduct,” pursuant to USSG § 2G2.3(b)(3). The pictures in question involved “an adult male sexually penetrating a prepubescent female vaginally.” Defendant appealed and argued that the conduct did not constitute “sadistic or masochistic conduct.”
* Holding: The court held that the conduct at issue was “inherently sadistic conduct,” and that the enhancement was accordingly appropriate. The court noted that the image in question was never made a part of the record, but that the finding was appropriate based on the parties’ stipulation as to the contents of the image. Accordingly, the sentence was affirmed.
• 2G2.4(b) - Child Porn - Amount of Images
U.S. v. Geerken, 06-3987 (10/22/07)
> Defendant was convicted in 2006 of possession of child pornography, but the offense occurred in 2003. At sentencing, the district court applied the 2003 guidelines in order to avoid ex post facto considerations. In determining defendant’s sentence, however, the district court relied on an application note to USSG § 2G2.4 that was added in 2004. The note indicated that, for videos of child pornography, each video or movie counts as 75 images. Based upon this consideration, the court determined that defendant possessed more than 600 images and enhanced defendant’s sentence accordingly. Defendant failed to object to the enhancement in the district court, but argued on appeal that use of the 2004 application note was improper.
* Holding: According to USSG § 1B1.11(b)(2), where a district court applies an earlier version of a guideline manual, it must apply that edition in its entirety. The only caveat to this rule is that a court may consider subsequent guideline amendments if they are clarifying, rather than substantive. In order to determine whether an amendment is clarifying, the court must consider (1) how the Sentencing Commission characterized the amendment, (2) whether the change is to a guideline or only the commentary, and (3) whether the amendment resolves ambiguity in the original wording of the guideline. In the case, the court held that the Commission characterized the 2004 amendment to the application note as “guidance” and “an instruction,” both terms indicating that the amendment was clarifying. Further, the court noted that the amendment was only to the commentary, and that it cleared up ambiguity in the 2003 version of the guideline which failed to define the term “images.” Thus, the court ruled that the 2004 amendment to the application note was clarifying, and accordingly found no plain error in the district court’s use of the amended version.
• 2K2.1/1B1.3 - Relevant Conduct Firearms
U.S. v. Phillips, 06-6191 (2/19/08)
> Defendant was convicted of being a felon in possession of four firearms. At sentencing, the district court found that defendant was also responsible, pursuant to USSG § 1B1.3, for several additional firearms that he possessed two years before the offense, and for a gun he possessed while he was out on bond for the charged offense. As a result, defendant’s sentence was increased by four levels under § 2K2.1. Defendant appealed.
* Holding: Pursuant to § 1B1.3(a)(2), conduct may be considered “relevant conduct” to the offense of conviction if it was “part of the same course of conduct or common scheme or plan.” In this regard, offenses must be substantially connected by at least one common factor, such as common victims, accomplices, purpose or modus operandi. In determining whether the sufficient connection exists, the court considers the similarity, regularity, and time interval between the offenses. A sliding scale approach is utilizing by the court, meaning that where one factor is weak, a stronger presence of another factor is required. In the case, the court found that although two years separated defendant’s possession of the firearms, the strength of the other factors were sufficient, such as the common purpose (to protect himself), the regularity of the conduct, and the fact that he continued to possess guns while on bond. Accordingly, the sentence was affirmed.
• 2K2.1(a)(4) - Prior Crime of Violence
U.S. v. Chandler, 04-6203 (8/16/05)
> Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court increased defendant’s offense level based upon a prior conviction from Tennessee for facilitation of a felony. The felony that defendant facilitated was an aggravated assault, and the district court concluded that facilitation of an aggravated assault was a crime of violence, thus qualifying defendant for the enhancement. Defendant appealed.
* Holding: The offense of facilitation of a felony in Tennessee is always considered to be facilitation of a specific felony. Because the felony that defendant facilitated was an aggravated assault, the court ruled that it could qualify as a crime of violence. Specifically, the court held that facilitation of an aggravated assault was conduct that “presented a serious potential risk of physical injury to another,” and thus met the definition of a crime of violence under the guidelines. Accordingly, the sentence was affirmed.
• 2K2.1(a)(4) - Prior Crime of Violence
U.S. v. Armstead, 05-6480 (11/6/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court enhanced his sentence under USSG § 2K2.1(a)(4) because it found that defendant’s Tennessee conviction for attempted child abuse was a crime of violence. In the prior Tennessee case, defendant was indicted for aggravated child abuse, but pled guilty to attempted child abuse. Defendant appealed.
* Holding: Applying the Taylor/Shepard categorical approach established by the Supreme Court, the court held that the record was insufficient to prove that defendant’s attempted child abuse conviction was violent. Specifically, the court found error with the district court’s sole reliance on the Tennessee indictment to conclude that the offense was violent, because defendant was not convicted of the offense charged in the indictment. Accordingly, the court remanded the case to the district court with instructions to permit the government to supplement the record with any materials that were cognizable under Taylor/Shepard in order for the district court to ascertain whether the offense was, in fact, a crime of violence.
• 2K2.1(a) - Prior Crime of Violence
U.S. v. Bartee, 07-1522 (6/10/08)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court determined that defendant’s prior Michigan conviction for attempted criminal sexual conduct in the second degree constituted a crime of violence, thus increasing his guideline range. Defendant appealed.
* Holding: Relying on the Supreme Court’s recent decision in Begay (See P.V. Issue #19), the court held that attempted criminal sexual conduct under Michigan law was not properly classified as a crime of violence. The offense did not contain an element of force, it was not an offense enumerated in the definition of a crime of violence, and it did not otherwise involve conduct creating a serious potential risk of injury. Specifically, the court found that, utilizing the required categorical approach, neither the charging statute nor the charging document explicitly stated that the victim was a minor. As such, the court ruled that the offense of attempted criminal sexual conduct was not “similar, in kind as well as in degree of risk posed” to the offenses that are enumerated in the definition of a crime of violence, and thus, the offense could not be counted under the guidelines. Accordingly, defendant’s sentence was vacated.
• 2K2.1(a)-Firearm-Prior Crime of Violence
U.S. v. Mosley, 08-1783 (6/5/09)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court determined that defendant’s prior Michigan conviction for resisting and obstructing a police officer was a “crime of violence” and increased defendant’s offense level accordingly. Defendant appealed.
* Holding: Under Michigan law, the resisting and obstructing offense was defined as applying to anyone who “assaults, batters, wounds, resists, obstructs, opposes, or endangers” a police officer. The court held that the offense contained at least two categories of crimes: one that involved assaulting, battering, or wounding an officer, and a second that covered obstructing an officer. Relying on the Supreme Court’s recent decisions in Begay (See P.V. Issue # 19) and Chambers (See P.V. Issue #25), the court held that the obstruction category of offenses under the Michigan statute did not qualify as a “crime of violence” under the “otherwise clause” of the sentencing guideline. Specifically, the court ruled that obstruction of an officer is not necessarily “purposeful, violent, and aggressive” conduct, nor is it similar in degree of risk to the offenses enumerated under the “crime of violence” definitional section in the guidelines. Accordingly, defendant’s sentence was vacated. The court permitted the government on remand to present the indictment, plea agreement, plea colloquy, or other appropriate record from the Michigan conviction in seeking the enhancement.
• 2K2.1(a)(4) - Prior Crime of Violence
U.S. v. Rogers, 08-6181 (2/8/10)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court increased defendant’s offense level because he had a prior conviction on his record for a crime of violence. The conviction at issue was Tennessee offense for evading arrest in a motor vehicle. Defendant appealed his sentence.
* Holding: Relying on the court’s prior decision in Young (See P.V., Issue #28), the court held that the Tennessee evading arrest in a motor vehicle conviction constituted a crime of violence under the guidelines. The court found that the evading arrest offense was intentional conduct that was similar in degree of risk posed to the offenses enumerated in the guidelines’ definition of a crime of violence. Further, the court ruled that the act of fleeing from an officer in a vehicle always poses a potential risk of harm to the officers, thus constituting a crime of violence under the “otherwise” clause. Accordingly, defendant’s sentence was affirmed.
• 2K2.1(b)(2)-Possession of Gun as Collector
U.S. v. Baker, 06-5984 (8/29/07)
> Defendant was convicted of possessing a firearm after being convicted of a misdemeanor crime of domestic violence. At sentencing, he argued that he should receive a reduction, pursuant to USSG § 2K2.1(b)(2), because he possessed the gun solely for collection purposes. Defendant claimed that the gun, an old shotgun, had been in his family for generations and that he was keeping it to give to his son. The district court denied the request for the reduction and defendant appealed.
* Holding: In determining whether a defendant has possessed a gun solely for collection purposes, the court must consider the relevant surrounding circumstances including “the number and type of firearms, the amount and type of ammunition, the location and circumstances of possession and actual use, the nature of defendant’s criminal history, and the extent to which possession was restricted by local law.” A defendant bears the burden of proving the grounds for the reduction by a preponderance of the evidence. In the case, the court found little support for defendant’s argument that the gun was kept solely for collection. The court noted that the gun was neither a classic gun nor valuable, that it was not stored in a manner consistent with an item of value or treasure, and it was not polished or treated as one would treat something that was part of a collection. Accordingly, the court held that the district court’s ruling was proper and affirmed defendant’s sentence.
• 2K2.1(b)(4) - Firearms - Stolen
U.S. v. Jackson, 03-2493 (3/24/05)
> Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court imposed a two-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because it determined that the firearm was stolen. Defendant contended that he had not stolen the firearm, but merely taken it from his father’s car without permission for the purpose of committing suicide. Defendant assumed that the gun would eventually be returned to his father.
* Holding: The court determined that defendant’s act of taking the gun without his father’s permission qualified the gun as “stolen” for purposes of the guideline. The court declined to apply a common law larceny type of definition to the term “stolen,” which would require an intent to deprive the owner permanently of the property. Instead, the court relied on a more contemporary definition of “stolen,” meaning “taking dishonestly or secretly.” Accordingly, the two-level enhancement was affirmed. The case was nonetheless remanded for resentencing in light of Booker.
• 2K2.1(b)(5) - Another Felony Offense
U.S. v. Alford, 04-6117 (2/10/06)
> Defendant was convicted of being a felon in possession of a firearm. In the plea agreement, defendant agreed that he had pointed the firearm at another and discharged it. At sentencing, the district court applied the four-level enhancement from U.S.S.G. § 2K2.1(b)(5) for using the firearm in relation to another felony offense. Defendant appealed.
* Holding: The court held that, by admitting in the plea agreement to the use of the firearm, defendant had admitted to conduct that would constitute an aggravated assault under Tennessee law. Accordingly, defendant had admitted to using the firearm in relation to another felony offense, and the guideline application was affirmed.
• 2K2.1(b)(5) - Another Felony Offense
U.S. v. Huffman, 05-2058 (8/30/06)
> Defendant was convicted of being a felon in possession of a firearm and at sentencing the district court imposed a four-level enhancement under USSG § 2K2.1(b)(5) because defendant possessed the firearm in connection with another felony offense. Specifically, the district court found that defendant had possessed the gun in relation to running a “dope house.” Defendant appealed.
* Holding: The court found that the four-level enhancement was appropriate under the “fortress theory.” This theory applies where a defendant used a firearm to protect drugs, facilitate a drug transaction, or embolden himself while participating in felonious conduct. The court ruled that defendant possessed the gun to protect himself and the operations of the “dope house” in which he was staying. Accordingly, the sentence was affirmed.
• 2K2.1(b)(6) - Another Felony Offense
U.S. v. Burns, 06-5398 (8/16/07)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court imposed a four-level enhancement because defendant possessed the firearm in connection with another felony offense, namely drug trafficking. The court found that the officers had conducted a controlled buy of crack cocaine and subsequently executed a search warrant on defendant’s residence. During the search, officers found a gun, crack, $1,100 in cash, and various drug paraphernalia. Defendant objected to the enhancement, the district court overruled the objection, and defendant appealed.
* Holding: The court held that application of the four-level enhancement was proper. Although mere proof that drugs and a gun are present in the same room does not necessarily support the enhancement under § 2K2.1, the “fortress theory” may support the increase where a defendant used a firearm to protect drugs, facilitate a transaction, or embolden herself during a transaction. In the case, the court found sufficient evidence to show that defendant had possessed the gun in the residence in connection with the distribution of crack, and the sentence was affirmed.
• 2K2.1(b)(6) - Another Felony Offense
U.S. v. Richardson, 07-5035 (12/20/07)
> Defendant was arrested in a hotel room in possession of a firearm and a small amount of marijuana. In the hotel room, officers also discovered a large amount of marijuana in his girlfriend’s purse, and digital scales. Defendant was charged with being a felon in possession of a firearm. At sentencing, the district court applied a four-level enhancement, pursuant to USSG § 2K2.1(b)(6), for possessing the firearm “in connection with another felony offense,” namely possession of marijuana with intent to distribute. Defendant appealed.
* Holding: In cases involving a firearm and drugs found at a residence, the court has adopted the fortress theory. Under this principle, a defendant is responsible for possessing the firearm “in connection with” drug trafficking where is reasonably appears that the firearm was possessed by defendant on the premises in order to protect the drugs or otherwise facilitate the drug transaction. In the case, the court ruled that defendant was in actual possession of the gun, and that he constructively possessed the drugs that were in his girlfriend’s purse. This conclusion was based on the facts that defendant and his girlfriend were in a small hotel room, defendant had marijuana on his person, they both were smoking marijuana, the girlfriend stated that the marijuana belonged to defendant, and defendant had other convictions for marijuana trafficking. Thus, the court ruled that defendant constructively possessed the drugs in his girlfriend’s purse and that the gun was used to protect the drugs. Accordingly, the four-level enhancement was affirmed.
• 2K2.1(b)(6) - Another Felony Offense
U.S. v. Bullock, 07-5632 (5/22/08)
> Officers went to investigate defendant based on evidence that he called and threatened a U.S. Congressman. Upon arriving at defendant’s home, he was found to be in possession of a firearm. Defendant was convicted of being in possession of a firearm while subject to a domestic violence order. At sentencing, the district court applied a four-level enhancement to defendant’s offense level under USSG § 2K2.1(b)(6) because of defendant’s possession of the firearm in relation to the threat. Defendant appealed.
* Holding: Pursuant to § 2K2.1(b)(6), a defendant’s sentence may be enhanced four levels if he possesses the firearm in connection with another felony offense. The court held that the district court properly applied the enhancement based upon defendant’s threat to the Congressman because such conduct would constitute a felony under federal law. Accordingly, defendant’s sentence was affirmed.
• 2K2.1(b)(6) - Another Felony Offense
U.S. v. Angel, 08-5158 (8/11/09)
> Defendant was convicted of being an unlawful user of a controlled substance in possession of a firearm, and manufacturing marijuana. At sentencing, the district court determined that defendant’s sentence should be increased by four levels under USSG § 2K2.1 because defendant possessed firearms in connection with the marijuana manufacturing. The guns were found in defendant’s bedroom along with a bag of marijuana, and defendant was growing marijuana on the property. Defendant appealed the application of the enhancement.
* Holding: The court held that mere possession of firearms that is coincidental to underlying drug trafficking is insufficient to support the application of the enhancement. However, the court may consider the proximity of the gun to the drugs, and whether the guns are “easily accessible.” Further, the court may consider the “fortress theory,” which permits an inference that firearms found in a defendant’s home are to be used to protect drug activity occurring in the home. Given that marijuana was being grown on the property, and marijuana was found with the guns in defendant’s bedroom, the court held that ample evidence supported the enhancement. The court found insignificant the fact that the marijuana in the bedroom was allegedly a usage amount, because the desire to protect drugs exists whether the drugs are for sale or for personal use. Accordingly, the district court’s ruling was affirmed.
• 2K2.1(b)(6) - Another Felony Offense
U.S. v. Rogers, 08-6181 (2/8/10)
> Defendant was convicted of being a felon in possession of a firearm. At sentencing, the district court imposed a four level enhancement because defendant possessed the firearm in connection with another felony offense. Specifically, defendant was seen leaving his residence with the firearm, and at his residence, defendant was maintaining an illegal chop shop for stolen vehicles. Defendant appealed and argued that the enhancement was improper.
* Holding: The court held that an enhancement under USSG § 2K2.1(b)(6) is proper where the firearm “facilitated, or had the potential of facilitating,” the other felony offense. The court ruled that defendant possessed the weapon at home, where the chop shop was located, and the court found no clear error in the district court’s conclusions that (1) chop shop customers are not likely law abiding, (2) defendant could not call the police if a transaction turned violent, (3) and defendant’s gun helped him to protect the operation. Accordingly, defendant’s sentence was affirmed.
• 2K2.1(c) - Cross-Reference Provision
U.S. v. Settle, 04-5136 (7/1/05)
> Defendant was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g), and at sentencing the district court applied the cross-reference provision in U.S.S.G. § 2K2.1(c). Such provision permits application of a separate guideline section if defendant used “any” firearm in connection with another offense. The court determined that defendant had used another firearm (not the gun that was the subject of the § 922(g) charge) in connection with an attempted murder. Thus, the district court cross referenced the attempted murder guideline. The cross reference increased defendant’s sentencing range from 27-33 months, to a sentence of 10 years. Defendant appealed, the Sixth Circuit affirmed, and the Supreme Court remanded the case for reconsideration in light of Booker.
* Holding: The court remanded to the district court for resentencing in light of Booker. In so holding, the court elaborated that the cross-reference provision of § 2K2.1(c) may be appropriate in a case where a different gun than the gun charged in the indictment was utilized. Because the language of the cross- reference section says “any” gun, the court concluded that use of a different gun than the one charged may be the basis for application of the cross reference if there was a clear connection between the gun charged in the indictment and the gun used in the relation to the other unlawful conduct. Thus, the court, upon remand, instructed the district court to apply the cross reference if it found a clear connection between the firearm for which defendant was charged and the firearm that he used in the attempted murder, or conduct relevant to the attempted murder.
• 2K2.1 - Firearms - Double Counting
U.S. v. Duckro, 05-3379 (9/18/06)
> Defendant pled guilty to one count of theft of firearms (18 USC § 922(u)) and one count of using a firearm in relation to a drug trafficking offense (18 USC § 924(c)). At sentencing, the district court applied a 10 level enhancement to defendant’s sentence, under USSG § 2K2.1(b)(1), because the offense involved more than 200 firearms. The court also enhanced defendant’s sentence by 2 levels under § 2K2.1(b)(4) because the firearms were stolen. Defendant objected to the 10 level enhancement as being impermissible double counting because he was also sentenced to a mandatory 5 year sentence for the § 924(c) charge. Defendant also objected to the 2 level enhancement as double counting because he was also convicted of theft of the firearms. The district court overruled defendant’s objections and he appealed.
* Holding: Impermissible double counting occurs where two offenses in question are for the same criminal act, and an enhancement for one count is applied even though the basis for the enhancement is the same as the basis for the accompanying count. In the case, the court first held that, regarding the 10 level enhancement, no double counting occurred because the enhancement under § 2K2.1 applied to the theft of the firearms, while the 5 year consecutive sentence under § 924(c) was for the trading of firearms for narcotics. Thus, there was clearly a “separation of time and conduct” between the two offenses and the 10 level enhancement was affirmed.
Second, the court held that application of the 2 level enhancement constituted impermissible double counting. The district court applied the 2 level enhancement for stolen firearms to defendant’s guideline calculation for his conviction for theft of firearms. The court concluded that the 2 level enhancement was for the same conduct as the theft of firearms conviction, and thus, would double count the same conduct. The court also noted that Note 9 to § 2K2.1 specifically prohibited applying the 2 level enhancement to a theft of firearm conviction. Finally, the court found that the error was not harmless because, even though the district court awarded a substantial downward departure in defendant’s sentence, the district court may have given an even lower sentence had the guideline been calculated correctly. Thus, the case was remanded for resentencing.
• 2K2.1(b) - Another Felony Offense
United States v. Howse, 06-5017 (3/6/07)
> Defendant was convicted of being a felon in possession of a firearm. At the time of his arrest he was in possession of a .38 caliber handgun. The day before defendant’s arrest, his girlfriend called the police and indicated that he assaulted her and her daughter with a .45 caliber handgun. At sentencing, the district court imposed a four-level enhancement for possessing the firearm in relation to another felony offense, namely the assault of the girlfriend. Defendant appealed.
* Holding: Under USSG § 2K2.1(b), a four-level enhancement is applicable if the defendant possessed “any firearm . . . in connection with” another felony. In the case, the court held that if the firearm possessed in relation to the other felony was a different gun than the one possessed by defendant in reference to the charged offense, the enhancement is only applicable if there is a “clear connection” between the firearms. The court found that the government failed to establish a “clear connection” between the .38 and the .45 caliber guns in defendant’s case and accordingly remanded for resentencing. The court ordered that the government will be permitted on remand to attempt to establish the requisite connection between the firearms.
• 2L1.2(b)(1) - Illegal Reentry
U.S. v. Berganl-Aveja, 04-3743 (7/21/05)
> Defendant was convicted of illegal reentry by a deported alien, and at sentencing the district court applied a sixteen level guideline enhancement, pursuant to U.S.S.G. § 2L1.2(b)(1), because it concluded that defendant had a prior conviction for a crime of violence. The prior conviction was based upon a charge for aggravated burglary of a residence that defendant pled down to a lesser burglary offense. Defendant appealed.
* Holding: A burglary offense may be deemed violent, pursuant to § 2L1.2(b)(1), if it is the burglary of a dwelling. In assessing whether a prior offense meets this definition, a district court may consider the statute charging the offense, the indictment, and the plea agreement. In defendant’s case, the government chose to rely solely on the indictment to prove that defendant’s burglary involved a residence. Because defendant pled to a lesser burglary offense than was actually charged in the indictment, and because the statute describing the lesser offense to which defendant pled included burglary of a non-dwelling in its definitional section, the court concluded that the record did not establish that the burglary offense qualified as violent. Because defendant did not plead guilty to the aggravated burglary charged in the indictment, the court held that the indictment alone was insufficient to establish that defendant was convicted of a crime of violence.
• 2L1.2 - Illegal Reentry
U.S. v. Hernandez-Fierros, 05-2206 (7/3/06)
> Defendant was convicted of illegal reentry and at sentencing argued for a below- guideline sentence based upon a claim that USSG § 2L1.2 impermissibly double counted his prior drug trafficking conviction both against his offense level and his criminal history score. Defendant also claimed that a below-guideline sentence was warranted to avoid sentencing disparity with districts that have fast-track programs for illegal immigration cases. The district court rejected defendant’s claims and sentenced him to the bottom of the guideline range. Defendant appealed.
* Holding: First, the court held that, because the commentary to § 2L1.2 specifically indicated that a prior conviction may count both against the offense level and the criminal history score, no impermissible double counting occurred. Second, the court held that the disparity in sentences with fast-track programs did not run counter to 18 USC § 3553(a)’s mandate to avoid unnecessary sentencing disparities. The court held that the disparity for fast-track programs is valid because it is “necessary for particular districts to run effectively” and is not based on “treating individual defendants disparately because of their individual differences.” Accordingly, the sentence was affirmed.
• 2L1.2-Illegal Reentry-Aggravated Felony
U.S. v. Portela, 05-6354 (11/21/06)
> Defendant was convicted of illegal reentry by a deported alien and a drug trafficking offense and at sentencing the district court concluded that he qualified for a 16 level enhancement under USSG § 2L1.2. The basis for the enhancement was a prior Tennessee conviction for vehicular assault that the district court concluded was a crime of violence under § 2L1.2. Defendant appealed.
* Holding: Pursuant to § 2L1.2, a prior offense qualifies as a crime of violence if it is one of several specifically enumerated offenses, or it is an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Leocal v. Ashcroft, the Supreme Court held that the term “use” in § 2L1.2 implied a more culpable mental state than mere negligence or accident, and thus held that a Florida DUI was not a crime of violence. Relying on the rationale of Leocal, the court held that the Tennessee crime of vehicular assault was likewise not a crime of violence under § 2L1.2 because it required only “recklessness” as the mens rea. Accordingly, the case was remanded for resentencing.
• 2L1.2(b)(1)(A) - Downward Deparure
U.S. v. Ibarra-Hernandez, 04-2502 (10/14/05)
> Defendant was convicted for illegally reentering the U.S. after being deported and at sentencing the district court enhanced defendant’s offense level by 16 levels based upon a prior conviction for attempted burglary, a crime of violence under § 2L1.2(b)(1)(A). Defendant requested a downward departure from the guideline range because the conduct underlying the attempted burglary conviction was not serious, involving only the breaking of a window. The district court decided that it did not have the discretion to depart under § 2L1.2(b)(1)(A), and declined defendant’s request. Defendant appealed, and while the case was pending on appeal, Booker was decided.
* Holding: The court ruled that, under § 2L1.2(b)(1)(A), the district court had correctly determined that it had no discretion to grant a downward departure. Because the guidelines provide for a 16 level enhancement for a crime of violence (with attempted burglary being specifically listed), as opposed to merely an 8 level enhancement for other aggravated felonies, a district judge has no discretion to depart downward because of the nature of the prior attempted burglary conviction under § 2L1.2(b)(1)(A). Accordingly, the court found that the district court did not err. The case was remanded, however, for resentencing consistent with Booker.
• 2L1.2 - Prior Drug Trafficking Offense
U.S. v. Medina-Almaguer, 07-4254 (3/12/09)
> Defendant was convicted of illegal reentry following deportation. At sentencing, the district court determined that defendant’s prior California drug conviction counted as a “drug trafficking offense,” thus qualifying defendant for a 16-level guideline enhancement. The California statute made it unlawful for any person to “transport, import, sell, furnish, or give away” a controlled substance. Relying on a transcript from the preliminary hearing in the prior case, the district court determined that defendant sold narcotics to an undercover officer, and accordingly concluded that the prior offense constituted a “drug trafficking offense.” Defendant appealed.
* Holding: Relying on the Supreme Court’s decisions in Taylor and Shepard, the court concluded that the district court’s reliance on the preliminary hearing transcript was improper. The preliminary hearing transcript did not contain information that defendant “necessarily admitted” when he pled guilty to the California drug case; thus, consideration of the transcript did not conform to the categorical approach mandated by the Supreme Court. Further, the court specifically refused to extend its prior holding in U.S. v. Jones, (See, P.V., Issue #9), where the court ruled that consideration of an “affidavit of complaint” was proper under the categorical approach. The court determined that Jones applied only to the determination of whether two prior offenses occurred “on occasions different from one another” under the ACCA. Accordingly, defendant’s sentence was vacated.
• 2L2.1-Trafficking Immigration Documents
U.S. v. Rivera, 06-5573 (2/20/08)
> Defendant was convicted of transporting illegal aliens from New Jersey to Tennessee in order to obtain “certificates for driving.” At sentencing, the district court applied USSG § 2L2.1 based upon its conclusion that the “certificates for driving” were “related” to immigration. Defendant argued that § 2L2.1 was inapplicable and that the general fraud guideline at § 2B1.1 should apply. Defendant appealed.
* Holding: The court held that § 2L2.1 was inapplicable to the case for three reasons. First, the “certificates for driving” could not be used as legal identification pursuant to Tennessee law. Second, because they were not legal identification, they could not be used to gain the benefits of legal status. In fact, Tennessee created the “certificates for driving” specifically for use by illegal aliens driving in the state. Third, none of the “certificates for driving” obtained by defendant were actually used to obtain legal status. Therefore, the “certificates of driving” did not, and could not, relate to immigration, and the case was remanded for resentencing.
• 2N2.1 - Regulatory Offenses
U.S. v. Gibson, 03-6592 (5/24/05)
> Several defendants were convicted of violating federal regulations regarding coal mine health and safety standards, and at sentencing, the district court applied U.S.S.G. § 2N2.1 to determine the sentence. Defendants appealed application of the guideline to the case, instead advocating for application of the fraud guideline at § 2B1.1.
* Holding: The court held that, where no guideline specifically covers an offense, the district court must choose the most analogous guideline, and that the court’s determination would only be reversed if unreasonable. The court held that, even though § 2N2.1 by its terms deals with regulations regarding food and drugs, it is the most analogous guideline for violation of federal coal mine safety standards. Accordingly, application of the guideline was appropriate.
• 2S1.1(a)(1) - Money Laundering
U.S. v. Anderson, 07-5037 (5/27/08)
> Defendant was convicted of money laundering the proceeds of her son’s drug trafficking conspiracy. At sentencing, the district court applied USSG § 2S1.1(a)(1) because it determined that defendant was responsible for the underlying drug conspiracy. Accordingly, the court determined defendant’s base offense level under § 2D1.1, however the district court refused to a consider a reduction under the safety valve provision of § 2D1.1(b)(7). Defendant appealed.
* Holding: Section 2S1.1(a)(1) may only apply to a defendant’s money laundering conviction if two conditions are met: (1) the defendant must be responsible for the underlying offense, either because she committed it or it is relevant conduct; and (2) the base offense level for the underlying offense must be determinable. In the case, the court first held that the district court properly determined that defendant was responsible for the underlying drug conspiracy because she was aware of her son’s activities, brought money to him in order to purchase drugs, and transported drug proceeds. Second, the court held that the underlying offense level was determinable based upon the testifying agent’s conversion of drug proceeds into a drug amount and making a conservative estimate of the amount defendant was likely involved with. Thus, application of § 2S1.1(a)(1) was affirmed.
The court further held that, because § 2S1.1(a)(1) required application of the guideline for the underlying offense (§ 2D1.1), the district court was also required to apply the “specific offense characteristics” of that section. Thus, the case was remanded for the district court to consider whether the safety valve reduction (§ 2D1.1(b)(7)) was applicable to defendant.
• 2S1.2 - Money Laundering
U.S. v. Harmon, 03-1925 (5/12/05)
> Defendant was charged with multiple counts of wire fraud and two counts of money laundering, but worked out a plea agreement for one count of money laundering pursuant to 18 U.S.C. § 1957. At sentencing, the district court applied U.S.S.G. § 2S1.2 and concluded that defendant was responsible not only for the dollar amount of the money laundering, but also the entire dollar amount involved in the wire fraud counts, pursuant to the relevant conduct provisions of §1B1.3. The district court then sentenced defendant to serve 37 months in prison. During the pendency of the appeal, Booker was decided.
* Holding: The court held that, where a defendant is convicted of money laundering, it is not proper to group the loss from dismissed wire fraud counts with the loss for the money laundering conviction. The court reasoned that, under the relevant conduct guideline, the harm being measured in the money laundering guideline is different in kind than the harm being measured in the fraud guideline (§ 2B1.1). Thus, defendant’s sentence should have been calculated based solely on the loss from his money laundering activities, not the wire fraud loss. Accordingly, defendant’s sentence was reversed and the case remanded for resentencing in light of Booker. The court noted that it was applying the 1998 version of § 2S1.2. The court indicated that the section was amended effective November 1, 2001, and that the court’s holding would be “highly dubious” under the amended version of the section because a new application note to the section suggests that grouping of such counts may be appropriate.
• 2T1.1 - Tax Loss
U.S. v. May, 07-3465 (6/9/09)
> Defendant was convicted of tax evasion (26 USC § 7201) and failure to withhold and pay over employee payroll taxes to the IRS (§ 7202). At sentencing, the district court determined that defendant had reported to IRS that his taxes were deducted from his income by his company, when in fact, no such money was deducted or paid to IRS. The district court counted this taxable income two times for loss purposes: once based on defendant’s failure to withhold and pay the taxes to IRS as an employer, and a second time for defendant’s personal tax evasion for failing pay taxes as a tax payer. Defendant appealed.
* Holding: The court held that the district court tax computation constituted impermissible double counting. Clearly, the funds on which defendant failed to pay taxes were only subject to taxation once. Thus, defendant could have paid the taxes as either payroll taxes or on his individual income tax. Accordingly, the tax could only be counted once for purposes of USSG § 2T1.1. Based on this finding, the court also adjusted the restitution amount owed. The sentence was vacated and the case remanded.
• 2T1.4 - Tax Loss
U.S. v. Maken, 05-4572 (12/26/07)
> Defendant was convicted of failure to file tax returns and tax evasion. At sentencing, the district court determined defendant’s total loss under USSG § 2T1.4 based upon both the federal tax loss and the state tax loss. Defendant appealed and argued that state tax loss cannot be included as relevant conduct.
* Holding: The court held that state tax loss is properly attributable as relevant conduct to federal tax loss as long as the state tax loss is part of the same course of conduct or common scheme or plan. In the case, the court found that the state tax loss was relevant conduct to the federal tax loss based upon the temporal proximity, similarity, and regularity of the conduct. Accordingly, defendant’s sentence was affirmed.
• 2T1.1(b)(2) - Sophisticated Means
U.S. v. May, 07-3465 (6/9/09)
> Defendant was convicted of tax evasion and failure to withhold and pay over income taxes. At sentencing, the district court applied a two-level enhancement for sophisticated means based on defendant’s activities in attempting to hide his illegal activities. Defendant appealed.
* Holding: The court held that the sophisticated means enhancement of USSG § 2T1.1(b)(2) was appropriate where defendant closed his company and opened a new company under a different name, disguising his ownership of the second company. Further, defendant established an S-Corporation and trust to funnel money to his wife in order to disguise profits from his companies. Accordingly, application of the two-level enhancement was affirmed.
• 2X1.1(a) - Conspiracy
U.S. v. Gibson, 03-6592 (5/24/05)
> Several defendants were convicted of conspiracy to make false statements based upon misrepresentations made during a federal coal mine safety investigation. The district court applied U.S.S.G. § 2X1.1(a) to the conspiracy conviction, and by cross-reference, applied the fraud guideline at § 2B1.1. The government contended that, pursuant to § 2B1.1(b)(11), the court should apply a sentence enhancement because defendants created a risk of death or serious bodily injury to the mine employees. The district court refused to apply the enhancement, finding that defendants did not intend to put the employees at risk. The government appealed, claiming that it did not have to prove intent.
* Holding: The court held that, pursuant to § 2X1.1(a), enhancements from cross-referenced sections, i.e., § 2B1.1(b)(11), can only be applied to a defendant for “any intended offense conduct that can be established with reasonable certainty.” Thus, § 2X1.1 requires that the government prove intent in order to establish the risk of injury enhancement found in § 2B1.1(b)(11). The court agreed with the district court that the facts did not establish defendants’ intent, and accordingly affirmed the district court’s decision.
• 2X1.1 - Attempt
U.S. v. Gale, 05-4204 (11/20/06)
> Defendant fraudulently obtained a loan to purchase two classic cars by misrepresenting the value of the cars and that he had another person participating in the financing. The bank discovered the fraud after the loan money was dispersed, but before defendant received the cars. The bank obtained the cars and sold them to repay a portion of the money loaned. Defendant was convicted of wire fraud and at sentencing he argued that he should receive a three-level reduction from his offense level under the attempt guideline, USSG § 2X1.1. Defendant claimed that his conduct qualified as an attempt because he never actually received the cars. The district court rejected defendant’s argument and he appealed.
* Holding: Under the attempt guideline at § 2X1.1, a defendant may receive a three-level reduction for an attempt unless the defendant completed all the acts necessary for the successful completion of the substantive offense. The court held that, under the wire fraud statute (18 USC § 1343), success of the scheme is not an element of the crime. Thus, because defendant completed all elements of the crime as set out in the indictment, he did not qualify for the three-level reduction pursuant to § 2X1.1. The sentence was accordingly affirmed.